Another point about Alexander v. Sandoval.

Mr. Clegg is general counsel of the Center for Equal Opportunity.
April 25, 2001 9:55 a.m.

nother intriguing part of Justice Scalia's opinion is the issue he doesn't address, at the very beginning of his decision. He points out that Title VI itself has been interpreted by the Court to ban only intentional discrimination, but the regulations at issue here go beyond that, banning actions that have only a disproportionate effect. There is a huge difference between the two — that is, between a guarantee of nondiscrimination and a guarantee of racial and ethnic proportionality. But, Scalia continues, Alabama didn't challenge the validity of the regulations in this case, and so the Court will assume "for the purposes of deciding this case" that the government had the authority to issue these regulations.

What Scalia has done is invite another litigant to challenge in some future case the authority of an agency to issue regulations that rely on the "disparate impact" approach. If the Court then ruled that all such regulations are invalid, this would strike a devastating blow against the insistence of the civil rights establishment on de facto quotas in all federal programs. It would also make it impossible to challenge English-language provisions.

Legislation will immediately be introduced in Congress to overturn today's decision. Many Republicans will be reluctant to oppose it, particularly in light of Justice Stevens's insistence that the decision upsets the status quo — which will be quoted by the legislation's sponsors as evidence that they are simply "restoring" civil rights that had long been established. But if such a Republican feels that he or she has to vote for some bill, it might draw the distinction drawn by Justice Scalia, and spell out that, indeed, regulations promulgated under Title VI should go no further than Title VI: (1) Private individuals who otherwise have standing may sue to enforce regulations promulgated under Title VI; but (2) No regulation may be promulgated to effectuate Title VI that prohibits actions which have a disparate impact but do not constitute disparate treatment, including but not limited to any action that requires the use of English.